A group of sixteen fire captains from the Marion County Fire and Rescue Department (MCFRD) filed a federal lawsuit last week claiming the county has violated the FLSA. In a complaint filed in the U.S. District Court for the Middle District of Florida, on September 18, 2019, the captains made two basic claims:
- Marion County Fire and Rescue Department fails to pay captains any FLSA overtime, and
- Marion County Fire and Rescue Department does not pay captains for all hours worked.
Here, the captains claim they regularly work a schedule of 24 hours on-duty followed by 48 hours off-duty. This schedule results in working either 48 or 72 hours per workweek. The FLSA requires most firefighters receive FLSA overtime after working more than 53 hours in a 7-day, or 212 hours in a 28-day work period. According to the complaint, the captains do not receive any FLSA overtime despite regularly working more than 53 hours per week, or 212 hours in 28 days.
The captains also claim they are paid straight time, as opposed to overtime, for working additional unscheduled work shifts even when overtime is required by law. Finally, the captains also allege MCFRD fails to pay them at all for additional unscheduled work shifts of less than four hours in length.
It appears—as best as we can gather from the complaint—that MCFRD is treating captains as overtime exempt white-collar employees. The FLSA contains minimum wage and overtime exemptions for bona fide white-collar executive, administrative, and professional employees. Whether any employee, including fire officers, can be properly classified as an overtime exempt white-collar employee depends on the specific facts. Fire department officers in one community may meet the requirements of the exemption and be ineligible for FLSA overtime, while officers in a neighboring community may be entitled to FLSA overtime. It all depends on the specific facts and very seldom are facts the same from one department to the next.
This complaint is unusual for one reason. Typically, the debate surrounding white-collar overtime exemptions in the fire service is reserved for high-ranking fire department officers, such as battalion chiefs and fire marshals. Here we have fire captains seeking overtime. The challenge for Marion County will likely lie in establishing the fire captains’ primary duty (which the Department of Labor refers to as an employee’s principle, main, or most important job duty) is acting as manager of the fire department as opposed to acting as a first responder. Department of Labor (DOL) regulations found at 29 C.F.R. §541.3, often referred to as the First Responder Regulations disallow utilizing white-collar overtime exemptions for first responders regardless of rank or pay level.
Here is a copy of the complaint.